Yashveer Singh vs State Of U.P. & Others
2011 Latest Caselaw 2822 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 30.05.2011
 
 Judgment Delivered on 19.07.2011
 

 

 

 
Court No. - 30
 

 
Case :- WRIT - C No. - 18427 of 2008
 

 
Petitioner :- Yashveer Singh
 
Respondent :- State Of U.P. & Others
 
Petitioner Counsel :- P.R. Maurya
 
Respondent Counsel :- C.S.C.,Anuj Kumar,G.K. Malviya
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the parties.

In this case on 11.05.2011, 20.05.2011, 23.05.2011 and 30.05.2011 following orders were passed.

11.05.2011

"It is shocking to know that a pond of more than three hectares which was let out to petitioner for Rs.73,000/- per year has been let out by the Deputy Collector Tehsil Budhana, District Muzaffarnagar to respondent no.5 Ishaq Ahmad claiming to be a member of Muzaffarnagar Matsyajeevi Sahakari Samiti Ltd. for only Rs. 3,100/- per year. Respondent no.5 and the Deputy Collector are equal partners in loot of the Government property to the extent of Rs.70,000/- per year. The Deputy Collector who passed the order shall immediately file his personal affidavit to show cause as to why recommendation for initiating disciplinary proceedings against him after suspending him shall not be made and why he shall not be liable to reimburse to the Government 50% of the amount embezzled by him in collusion with respondent no.5.

List peremptorily at the top of the list on 20.05.2011. Till 20.05.2011, the deputy Collector concerned, where ever at present he may be is restrained from discharging any important function apart from routine work.

Learned Chief Standing counsel is directed to ensure compliance of this order.

Office is directed to supply a copy of this order free of cost to Learned Chief Standing counsel today."

20.05.2011

"Put up on 23.5.2011.

After hearing learned counsel for the parties, if it is considered appropriate to auction the pond, between the petitioner and the respondent no.5, then the auction would be held on that date in the Court."

23.05.2011

"Learned counsel for the petitioner states that even though on 11.04.2008 he gave a statement that petitioner was no more interested in taking fisheries lease of the pond in dispute, however, now the petitioner is ready to take the fisheries lease.

Learned counsel for the respondent no. 5 states that due to the statement of the petitioner as recorded in the order dated 11.04.2008, he could not file counter affidavit on behalf of the respondent no. 5. Accordingly, let the counter affidavit be filed within three days.

Put up on 27.05.2011. On no future date Deputy Collector need be present in Court unless specific order in that regard is passed."

30.05.2011

"Rejoinder affidavit has been filed. Learned counsel for the respondent no5 states that earlier patta was granted to the Society and copy of the same has been annexed as Annexure C.A.-1. However, learned counsel for respondent no.5 has categorically stated that his client is not interested in participating in the bid. However, learned counsel for respondent no.5 states that respondent no.5 is ready to take the fisheries lease at Rs.10,000/- per hectare per year.

Judgment reserved."

The matter pertains to grant of 10 years fisheries lease in respect of pond comprised in plot No.251 M area 3.0480 hectare situate in Gram Panchayat Habibpur Sikari, Tehsil Budhana, District Muzaffarnagar. The lease was initially settled in favour of the petitioner through public auction on 07.01.2005. Petitioner's bid of Rs.73,000/- per year was highest. The S.D.O./Deputy Collector through five words order cancelled the auction on 07.07.2006. Thereafter, it appears that some recommendation was made for allotment of the pond in favour of a society by the name of the Matsyajeevi Sahkari Samiti Limited, Muzaffarnagar of which respondent no.5 is a member. The S.D.O./ Deputy Collector through three word order "approved as proposed" granted the lease to the respondent no.5 society on 06.12.2006. The lease was granted for Rs.3100/- per year which is only 4% of Rs.73,000/-, the yearly rent for which lease was granted to petitioner. In this manner the S.D.O. (along with is subordinate staff) and the society jointly looted Government/ Gaon Sabha property.

An amount of Rs.73,000/- had already been deposited by the petitioner. Petitioner filed an application on which through order dated 23.07.2007 Additional Collector (Administration) Muzaffarnagar directed Deputy Collector /S.D.O. Budhana, District Muzaffarnagar to enquire into the matter. The respondent no.2 reported that petitioner had not deposited any other amount except Rs.73,000/- and he was of Saini caste while according to Government order only people of Dhimar (Mallah) caste can be allotted fisheries lease. The report was given on 18.08.2007. Petitioner again gave a notice / representation to the Collector that either he must be permitted to do fisheries work in pond in dispute or amount deposited by the petitioner should be returned to him. It has been stated in para 12 of the writ petition and admitted by the respondents that it was allotted to the respondent No.5. Respondent no.5 has filed counter affidavit annexing therewith as Annexure C.A.-1, copy of the lease deed executed on 23.12.2006 in favour of the Muzaffarnagar Matsyajeevi Sahkari Samiti Limited, Muzaffarnagar in respect of pond in dispute.

It is admitted to the respondent no.5 that no advertisement in newspaper was issued before granting lease to it. It is also admitted that in the auction held in January 2005 respondent no.5 Co-operative Society did not participate. In para 7 it has been admitted that against the allotment order dated 06.12.2006 petitioner had filed representation no.9 of 2007-08 which was rejected by the Collector Muzaffarnagar on 24.01.2008. Annexure C.A.-5 is copy of the order dated 05.07.2010 passed by the Collector withdrawing the notice which had been given to the co-operative society on 05.11.2008 and restoring the patta granted to it and further directing that the annual rent would be Rs. 30,000/- in accordance with the judgment of this Court reported in Babban Vs. State 2004(97) R.D. 675 (holding that fisheries lease shall not be settled for less than Rs.10,000/- per hectare per year). However, in respect of payment of lease amount contained in the said order, respondent no.5 filed revision being revision no.8 of 2008-09. Commissioner Saharanpur Division Saharanpur allowed the revision on 05.07.2010 (very promptly) and set aside direction of payment of rent at the rate of Rs. 10,000/- per hectare per year passed by Collector, Muzaffarnagar on 05.07.2010.

I have discussed all these aspect in detail in the authorities reported in Satya Vrat Singh Vs. State, 2006 (101) RD 245 and Ram Kumar Vs. State, 2009 (107) RD 557. The full bench authority reported in Ram Kumar Vs. State, 2005 (99) RD 823 was thoroughly discussed, examined and followed in these authorities. Para-5 of my judgment in Ram Kumar Vs. State, 2009 (107) RD 557 is quoted below:

"In the judgment reported in Satya Vrat Singh Vs. State, 2006 (5) ALJ 549, I summarised the effect of the Full Bench. Wrongly interpreting the said Full Bench, Government had issued an order on 23.02.2006 mentioning that the Full Bench had held that State Government had got a right to settle the fisheries lease on the basis of priorities instead of public auction. I therefore directed that the said Government Order shall not be given effect to. Paragraphs No.5, 6 & 11 of Satya Vrat Singh authority are quoted below:

"5. In the aforesaid Full Bench authority in para 29 it has clearly been held that fisheries lease shall be settled through auction after due advertisement in news paper. It has also been held in the said authority that no renewal must be granted. The Government Order dated 17.10.1995 dealing with manner of settlement of fisheries lease and preferece for such settlement with certain castes / communities has been approved subject to these two exceptions. The said Government Order has been upheld by the Full Bench in respect of priorities to members belonging to such casts, who are traditionally carrying on the fisheries business. Para 29 of Ram Kumar's Full Bench decision is quoted below:

"29.The settlement of fishery according to the directions under section 126 of 1950 Act is settlement of property vested in the Gaon Sabha which should be done in a prescribed manner giving opportunity to all eligible persons to participate. The Revenue Officers, who are entrusted with duty, shall ensure proper advertisement of the date of settlement so that all persons who are eligible to participate have sufficient notice of the proposed settlement. The Government order itself contemplates "wide publicity". The Sub -Divisional Officer himself should see that wide publicity is made. Now a days newspapers having wide circulation in the area is surest mode to publish a proposed settlement. As a general rule the sub-Divisional Officer should publish in a newspaper having wide circulation of the settlement of fishing right to enable all concerned to participate. As observed above, in the event there are more than one person in one particular category of preference, the Sub-Divisional Officer is not prohibited to award the said fishing right by inviting bids b y tender or auction."

6. However, if no person belonging to the preferential category as mentioned in the Government order dated 17.10.1995 is interested in taking the lease then the pond can not be left vacant. It will have to be given to any other person who is interested in taking the fisheries lease and is highest bidder in the open auction. According to the Full Bench even if in the preferential category more than one person are interested, then the lease shall be settled through auction.

11. Before parting with the case it is essential to notice the Government Order dated 23.2.2006, shown by the learned Standing Counsel. The said Government Order was issued after the aforesaid Full Bench decision of Ram Kumar. In the said Government Order it has been mentioned that Full Bench authority of Allahabad High Court in its judgement dated 29.9.2005 in Writ Petition of Ram Kumar vs. State has held that State Government has got a right to settle the fisheries lease on the basis of priorities in stead of public auction. The Full Bench in para 29, which has been quoted above, has clearly held that fisheries lease should be settled through public auction so that every person belonging to the preferential category may know about it and in case more than one person belonging to preferential category are interested in taking the lease, then it shall be settled through auction. The Government Order dated 23,2,2006 is clearly based upon wrong interpretation of the Full Bench Authority. Hence it shall not be given effect to. Fisheries lease shall be settled strictly in accordance with Full Bench authority which clearly mandates that a date for public auction shall be advertised in news paper. It is needless to add that the advertisement must appear at least about a week before the date of auction. However, in case only one person belonging to preferential category comes forward on the advertised date, then fisheries lease shall be settled in his favour. In case more than one person belonging to preferential category as provided in the Government Order dated 17.10.1995 intend to take the fisheries lease, then it shall be settled through auction amongst them. In case no person belonging to preferential category is present on the date of auction then general auction amongst all the participants shall take place."

As the respondent no.5 co-operative society had neither participated in the auction in which lease was granted to petitioner nor any advertisement was issued in newspaper before granting the subsequent lease to respondent no.5 and the lease has been granted virtually for no amount hence the lease granted in favour of respondent no.5 co-operative society is set aside. More than six years have already passed hence it is directed that immediately lease of the pond in dispute shall be executed in favour of the petitioner for four years. In the affidavit of compliance filed by Sri Vinor Singh Choudhary, who was the Deputy Collector of Tehsil Budhana from 02.07.2005 to 25.-5.2007 in para 6 it has been stated that since 07.01.2005 till till 17.06.2006 petitioner used the pond in dispute for fisheries purpose.

Accordingly, Rs.36,500/- more shall be deposited by the petitioner for the said period forthwith. Fresh lease for four years shall be granted to the petitioner at the rate of Rs. 73,000/- per year. Half of total rent (1,46,000/-) must be deposited by the petitioner forthwith and for the rest period of two years equal amount of rent shall be deposited by 31.12.2012. Since June 2006 till date five years have passed. For this period of five years an amount of Rs. 3,65,000/- is due. Half of the amount shall be paid by the respondent society (after deducting any amount which may have already been paid by it). Half of rest half amount shall be deducted from the salary of Vinod Singh Chaudhary, who was Deputy Collector of Tehsil Budhana, District Muzaffarnagar from 02.07.2005 to 25.5.2007 and the remaining half of half amount shall be recovered from the Tehsildar on whose report three words order "approved as proposed" was passed by the S.D.M. in June 2006. Adverse entries shall also be made in the service records of the S.D.O. and the Tehsildar. The amount which is to be recovered from respondent no.5 shall be recovered like arrears of land revenue. Compliance report shall be filed within two months and the matter must be listed for perusal of the compliance report at the top of the list on 21.09.2011.

Writ petition is allowed as above.

Office is directed to supply copy of this order free of cost to learned Chief Standing Counsel within three days.

Order Date :- 19.7.2011

NLY